Easements Flashcards
Four characteristics of an easement in Re Ellenborough Park?
(1) There must be a dominant and a servient tenement
(2) An easement must accommodate the dominant tenement.
(3) The dominant and servient owners must be different persons.
(4) The right must be capable of forming the subject matter of a grant (i.e. a recognised easement).
Moody (ratio + facts)
It is no objection that the easement relates to the business of the dominant owner provided the business relates to the way in which the land is used (here the use of the DT as a pub had persisted for so long, it was in some sense inherent in the nature of the land)
Hill
Where the whole point of the right was to set up a new, boating business which had no normal connection with the ordinary use of his land, not to benefit an existing business, the right was a licence.
Re Ellenborough Park (accommodation of DT, principle + facts)
It is not sufficient that the right merely increases the value of the land; it must affect its use or enjoyment (e.g. here the park was a form of “garden substitute” – since houses normally have gardens enjoyment of the park was deemed to be annexed to enjoyment of the house)
Harris v Flower
An easement can only be used to benefit the DT and not in substance other land
Macepark (exception to Harris + two requirements)
If the use of the easement for the benefit of other land is merely “ancillary use” (i.e. the extent of the use for the benefit of other land is insubstantial) the rule in Harris will not apply
(i) It must be possible to say that the easement is, in substance, only used for the benefit of the DT and not both the DT and the non-dominant land.
(ii) The decisive factor will often be whether the benefit to the other land has its own commercial value (makes use of the land more profitable).
Giles
The focus of the Harris v Flower rule is on what is in substance and intention the user claimed by the DTO and not his actual movement
Re Ellenborough Park (subject matter of grant)
The right must be capable of clear definition (right to a view, privacy, wandering all rejected as being too uncertain)
Hunter + Phipps
The law has traditionally been more ready to recognise new positive easements, while the categories of negative easements are virtually closed.
Phipps points out that if C wants to restrict his neighbor’s use of land, but the right sought is not a recognised negative easement, C can take a restrictive covenant instead
Rance + Moncrieff
An easement cannot place a positive obligation on the STO
Moncrieff – A corollary to this principle is that the DTO must be entitled to enter and effect repairs (Lord Scott).
Exception to the rule in Mance?
Jones – exception for easements to fence where the STO has accepted the obligation of maintaining the fence
Batchelor/Blenheim
The approach to the ouster principle is one of degree, having regard to the extent of the use relative to the extent of the property; the question is whether the STO retains any reasonable use of the land or his ownership is illusory.
Wright
It was thought that the right to store coal in a coal shed could be an easement although this effectively excluded the STO!
Moncrieff (Lord Scott, two points)
- Sole use of land is not always fatal to an easement; the only prohibition is on exclusive possession and control, such that any minor use of the land by the STO would be consistent with an easement.
- The “reasonable use” test should be replaced with a test which asks whether the STO retains possession and control of the servient land ( subject to the reasonable exercise of the easement)
Moncrieff (Lord Neuberger)
Favoured retention of the ouster principle to avoid conferring proprietary status on occupational licences
